Const. Bill Bentley was among four officers who confronted Dziekanski at Vancouver's airport in October 2007, when the Polish immigrant was repeatedly stunned with a Taser and died.
All four officers were charged with perjury for their testimony at a subsequent public inquiry, held in 2009, where they were asked to explain alleged discrepancies between what they initially wrote in their notes and told investigators and what could be seen on an amateur video that emerged later.
The Crown argued at Bentley's trial that similar alleged discrepancies found in each officers' notes and police statements suggested they colluded on a story to tell investigators and then lied at the inquiry to cover up their collusion.
Bentley, who faced the first of four separate trials, was acquitted in July when a judge concluded there were other, more innocent explanations for the alleged discrepancies.
The acquittal raised immediate questions — which have so far gone unanswered — about how the Crown would proceed with the remaining three cases. Jury trials are currently scheduled for November, January and February, and the Crown has already said it plans to rely on the same theory and the same evidence in each of the remaining cases.
The special prosecutor handling the case has now filed an appeal of Bentley's acquittal, arguing the judge was wrong to reject the Crown's theory.
"The learned trial judge failed to apply the correct legal test in considering whether the evidence led by the Crown was sufficient to establish that the defendant colluded with his fellow RCMP officers prior to making his police notebook entries and providing certain statements to members of the integrated homicide investigation team," says a notice filed with the B.C. Court of Appeal, dated Aug. 28.
Special prosecutor Richard Peck is asking the Appeal Court to overturn Bentley's conviction and order a new trial. Peck declined to comment Thursday.
Bentley's lawyer could not immediately be reached for comment.
At Bentley's trial, the Crown presented the police notebooks and statements of each of the four officers. Prosecutors argued there were several instances in which all or several of the officers made the same errors when compared with the video.
For example, Bentley wrote in his notes and told a homicide investigator that Dziekanski grabbed a stapler and came at the officers screaming before he was stunned. He also said two officers wrestled Dziekanski to the ground.
On the video, Dziekanski can be clearly seen falling to the ground after the first Taser jolt. It's not apparent from the video what Dziekanski did once he grabbed a stapler from a nearby desk, as his back was to the camera and the desk partially blocked the camera's view.
The defence argued any errors in Bentley's notes or police statements were innocent mistakes that were the product of a fast-moving, stressful situation.
Bentley's lawyers also argued the officers had little opportunity the night Dziekanski died to gather together to work on a story.
The Crown did not produce any direct evidence to show the officers colluded the night Dziekanski died or even had the opportunity to huddle together to concoct a story, instead presenting a case based almost entirely on a comparison of the four officers' notes and statements.
Judge Mark McEwan, who appeared skeptical of the Crown's argument throughout the trial, concluded the Crown fell short of proving collusion — and, by extension, perjury.
"The Crown has advanced a suspicion based largely on circumstantial evidence," McEwan wrote as he found Bentley not guilty.
"As to each particular (allegation of perjury), however, and as to the indictment taken as a whole, there are other explanations, inconsistent with the guilt of the accused, that remain open on the evidence."
Bentley, Const. Kwesi Millington, Const. Gerry Rundel, and former corporal Benjamin (Monty) Robinson were all charged with perjury in May 2011.
The three remaining officers are currently scheduled to stand trial in front of juries.
Robinson's is scheduled to begin in November, Rundel is scheduled to stand trial next January and Millington's trial is scheduled for February, according to the court registry.
Also on HuffPost